Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 1 of 16 PageID #:220 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

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1 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 1 of 16 PageID #:220 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS NATIONAL RIFLE ASSOCIATION ) OF AMERICA, INC., et al., ) ) Plaintiffs, ) ) vs. ) No. 08 CV 3697 ) Judge Milton I. Shadur THE CITY OF CHICAGO, ) ) Defendant. ) DEFENDANT S MEMORANDUM OF LAW CONTESTING PLAINTIFFS STATUS AS PREVAILING PARTIES ENTITLED TO ATTORNEYS FEES Defendant City of Chicago ( Defendant or the City ), by its attorney, Mara S. Georges, Corporation Counsel for the City of Chicago, respectfully submits this memorandum in support of its position that Plaintiffs the National Rifle Association of America, Inc. ( NRA ), Kathleen Tyler ( Tyler ), Van F. Welton ( Welton ), and Brett Benson ( Benson ) (collectively, Plaintiffs ) are not prevailing parties entitled to attorneys fees under 42 U.S.C. 1988(b) in this matter. INTRODUCTION Plaintiffs request for attorneys fees in this case is a novel one: they seek an award of fees as prevailing parties without having actually received judgment or court ordered relief in their favor on any one of their claims. The single favorable ruling Plaintiffs received was a determination of a preliminary legal issue (albeit from the Supreme Court) that was never applied to any of their claims. That ruling resulted solely in an order vacating the Seventh Circuit s judgment, and remanding for further proceedings. As discussed fully below, this measure of success falls far short of the standard necessary to confer prevailing party status. Plaintiffs request for prevailing party status, and their corresponding request for an award of fees, should be denied.

2 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 2 of 16 PageID #:221 FACTUAL BACKGROUND Plaintiffs filed this lawsuit, together with National Rifle Association v. Village of Oak Park, Case No. 08-cv-3696, one day after the Supreme Court held that the Second Amendment conferred an individual right to keep and bear arms in the home for purposes of self-defense. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). Although originally assigned to different judges, this Court reassigned both of the NRA cases to its docket as related to the already pending case of McDonald v. City of Chicago, Case No. 08-cv-3645, filed the very same day that Heller was decided. Plaintiffs alleged that several provisions of the City s Municipal Code regulating the ownership and possession of firearms (the Ordinance ) violated the Second Amendment, as incorporated against the states via the Fourteenth Amendment. See Plfs Comp., docket entry # 1. Plaintiffs brought three Counts: (1) Count I, challenging provisions of the Ordinance that prohibited registration (and thereby possession) of any handgun within the City limits; (2) Count II, alleging an equal protection claim based on the prohibition of handgun possession except for certain exempt categories of persons; and (3) Count III, alleging that the City s handgun ban violated federal law, 18 U.S.C. 926A, which permits persons to carry and transport firearms under certain circumstances. For each of these claims, Plaintiffs sought a declaration that the Ordinance s provisions were null and void and sought injunctive relief prohibiting the City from enforcing those provisions and allowing Plaintiffs to register and possess handguns. Id. The Court noted that the threshold question of whether the Second Amendment was incorporated against the states via the Fourteenth Amendment should be decided as a preliminary issue, since the answer would impact the legal standards governing the Ordinance s constitutionality. Accordingly, Plaintiffs in all three cases filed briefs in support of incorporation. See, e.g, docket entry # 22. Before any of the defendants filed a response, however, this Court issued an opinion holding that Supreme Court 2

3 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 3 of 16 PageID #:222 precedent required it to find that the Second Amendment was not incorporated. See December 4, 2008 Mem. Opinion and Order, docket entry # 26. On December 18, 2008, Defendant was granted judgment on the pleadings on Counts I and II and, by stipulation of the parties, Count III of Plaintiffs Complaint was dismissed with prejudice. Docket entry #s 38 and 39. Plaintiffs in all three cases appealed this Court s order to the Seventh Circuit, where the appeals were consolidated. The Seventh Circuit affirmed, finding that it was also bound by Supreme Court precedent to rule against incorporation. See National Rifle Association of America v. City of Chicago, th 567 F.3d 856 (7 Cir. 2009). The NRA and McDonald plaintiffs then filed separate petitions for writs of certiorari in the Supreme Court. The Supreme Court granted the petition filed in McDonald, but did not act upon the writ filed by the NRA plaintiffs. On June 28, 2010, the Supreme Court issued its opinion holding that the Fourteenth Amendment incorporates the Second Amendment, reversing the decision of the Seventh Circuit and remanding for further proceedings. McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010). On the same day, the Supreme Court granted the NRA s petition for writ of certiorari and remanded the case to the Seventh Circuit. See June 29 Order, attached as Exhibit A. On July 2, the City repealed the Ordinance and enacted a new firearm ordinance (the Responsible Gun Owners Ordinance ), which allows for possession of handguns within the home but places certain restrictions on ownership and possession of firearms. See Chicago Mun. Code et seq. Oak Park repealed its handgun ordinance on July 19. In light of the repeals, the Seventh Circuit issued an order vacating the district court s judgment in all three cases and remanding with instructions to dismiss as moot. See August 25 Order, attached as Exhibit B. The order further stated that [w]e do not express any opinion on the question whether the repealers [sic], enacted before the Supreme Court s decision could be implemented on remand, affect the availability of fees under the approach of 3

4 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 4 of 16 PageID #:223 Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001). Id. On October 12, this Court dismissed all three cases as moot. The NRA Plaintiffs filed a motion for attorneys fees under 42 U.S.C. 1988, and the Court and the parties agreed that it would be most efficient to first resolve the issue of whether Plaintiffs qualified as prevailing parties. Accordingly, the City submits this memorandum of law explaining why, under Supreme Court and Seventh Circuit precedent, Plaintiffs do not qualify as prevailing parties. ARGUMENT I. Legal Standard For Attorneys Fees Under 28 U.S. C U.S.C. 1988(b) authorizes district courts to allow the prevailing party in civil rights litigation its reasonable attorney s fee as part of the costs. See, e.g., Federation of Advertising Indus. th Reps., Inc v. City of Chicago, 326 F.3d 924 (7 Cir. 2003); Hastert v. Illinois State Bd. Of Elections, 28 th F.3d 1430, 1439 (7 Cir. 1994). Status as a prevailing party is a threshold determination under Section Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). While a plaintiff need not be successful on all of his claims to qualify as a prevailing party, he must, at a minimum, have obtained some relief on the merits of his claims. Ferrar v. Hobby, 506 U.S. 103, 112 (1992); see also Buckhannon, 532 U.S. at 605 (2001) (prevailing party must have achieved a judicially sanctioned change in the legal relationship of th the parties. ); Zessar v. Keith, 536 F.3d 788, 795 (7 Cir. 2008) (party considered prevailing when court 1 enters final judgment in its favor on some portion of merits of claims). 1 Even where a party is deemed a prevailing party, he is not necessarily entitled to fees-- a technical victory may be so insignificant that an award of fees would be unreasonable. See Farrar, 506 U.S. at Because this memorandum addresses Plaintiffs status as prevailing parties only, Defendant will make, if necessary, other arguments regarding the propriety of awarding any fees at a later date. 4

5 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 5 of 16 PageID #:224 In Buckhannon, the Supreme Court rejected the catalyst theory, (followed by the Seventh Circuit and most other circuit courts), which had held that a plaintiff is a prevailing party if the lawsuit achieved the desired result through a voluntary change in the defendant s conduct. 532 U.S. at 605. There, plaintiff operated an assisted living facility that the state shut down because its residents failed the state self-preservation requirement. Plaintiffs sought a declaratory judgment that the self-preservation requirement violated federal law. Id. at The state legislature then repealed the requirement, and the case was dismissed as moot. Id. Plaintiffs sought attorneys fees, arguing that the lawsuit had achieved their desired result because of the state s repeal of the requirement, but the Supreme Court held that the catalyst theory was not a permissible basis for an award of attorneys fees. Id. The Court first emphasized that to be a prevailing party, a litigant must have obtained an enforceable judgment on the merits, a court-ordered consent decree[s], or some other judicially sanctioned material alteration of the legal relationship of the parties. Id. at See also Texas State Teachers Ass n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) ( plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant. ). The Court held that the alteration of the relationship requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. Id. at 603. The Court then concluded that voluntary change in conduct, such as repealing an ordinance before a ruling on its constitutionality, lacks the necessary judicial imprimatur on the change to confer prevailing party status. Id. II. Plaintiffs Were Not Parties To McDonald v. City of Chicago. As an initial matter, Plaintiffs should not be considered parties to the McDonald case for purposes of attorneys fees. The cases were brought separately by different plaintiffs. The NRA plaintiffs fought hard to distance themselves from McDonald, and strongly opposed reassignment of their cases 5

6 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 6 of 16 PageID #:225 to this Court. See, e.g., McDonald, Case No , docket entry # 39. After the Court issued its ruling on incorporation, the Seventh Circuit consolidated all three appeals into one proceeding to determine the identical legal issue, but it did not consolidate the cases. See NRA, 567 F.3d at 856. Continuing to distance themselves from each other, the McDonald and NRA plaintiffs then filed separate petitions for writ of certiorari. The Supreme Court granted the McDonald plaintiffs petition, and then, only after it issued its decision, did it separately grant the NRA plaintiffs petition and remand the case. See Ex. A. Certainly, according to its own operating procedures, the Supreme Court considered the NRA plaintiffs parties to McDonald. See Sp. Ct. Rule 12(6) ( [a]ll parties to the proceeding in the court whose judgment is sought to be reviewed are deemed parties entitled to file documents in this Court. ). In such cases, any party for whom certiorari was not granted is automatically assigned the role of respondent, and allowed to file a brief. Id. As a party-respondent under the Supreme Court s operating rule, the NRA plaintiffs filed their own separate brief with the Court. (They were also permitted oral argument, but only after moving for leave, and not as a matter of right). But the Supreme Court s procedural rule designating them as parties should not confer substantive rights, such as entitlement to attorneys fees as the prevailing party under an entirely unrelated federal statute. Indeed, Defendant found no cases holding that a party for purposes of filing designations in the Supreme Court equates to a party for purposes of fee awards under 42 U.S.C Therefore, Plaintiffs should not be considered parties entitled to recover any fees. See, e.g., Federation, 326 F.3d at 933 (denying award of attorneys fees where City amended ordinance after Supreme Court decision in which neither City nor plaintiff was party). III. Plaintiffs Do Not Satisfy The Test For Prevailing Party Status. Even if Plaintiffs could be considered parties to the McDonald decision, they do not qualify as prevailing parties under Supreme Court or Seventh Circuit precedent. While McDonald determined 6

7 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 7 of 16 PageID #:226 an important legal issue, it was not a judgment on the merits of any of Plaintiffs claims, nor did it materially alter the legal relationship between Plaintiffs and the City. 2 A. McDonald Is Not A Judgment On The Merits Of Plaintiffs Claims. Without question, McDonald was a significant ruling on an important constitutional issue. Governments, individuals, and the courts will be testing and analyzing countless state and municipal firearm regulations to determine their compatibility with the Second Amendment. The future implications of incorporation, however, do not transform Plaintiffs into prevailing parties in this case. First and foremost, Plaintiffs have not obtained a judgment on the merits of any of their claims. Plaintiffs sought declaratory and injunctive relief prohibiting enforcement of the City s handgun Ordinance, alleging that it violated the Second Amendment, the equal protection clause of the Fourteenth Amendment, and 18 U.S.C. 926A. Neither this Court, the Seventh Circuit, nor the Supreme Court decided or issued judgment for Plaintiffs on any one of these claims. This Court, following Supreme Court precedent, decided the interim legal issue of incorporation against Plaintiffs, and the Seventh Circuit affirmed. The Supreme Court reversed, holding that the Second Amendment applies to the states via the Fourteenth Amendment. McDonald, 130 S. Ct. at It did not, however, invalidate the City s Ordinance under the Second Amendment. It did not decide Plaintiffs equal protection claim. In short, it did not prohibit the City from enforcing the Ordinance, or otherwise direct the City to do, or refrain from doing, anything. Rather, it reversed and vacated the Seventh Circuit s order, and remanded the case 3 for further proceedings. 2 Because there is no settlement or consent decree at issue in this case, that factor recognized in Buckhannon and subsequent Seventh Circuit decisions is not applicable. 3 The fact that the Supreme Court ordered costs in favor of Plaintiffs is immaterial; under Supreme Court Rule 43.2, costs are automatically assessed in favor of the petitioner or appellant in cases 7

8 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 8 of 16 PageID #:227 Because both the City and Oak Park voluntarily repealed their ordinances before the Supreme Court s ruling was applied to any of Plaintiffs claims, the cases were dismissed as moot. The City could have chosen, however, to defend the Ordinance, and the parties would have continued to litigate Plaintiffs claims to a final resolution. While Plaintiffs suggest that, under Heller and McDonald, there was no longer any viable way to defend the handgun ban, the actual outcome of Plaintiffs claims will forever be unknown. The City is a uniquely-situated municipality, its Ordinance was not identical to the ordinance at issue in Heller, and there are ways the City could have defended the Ordinance and perhaps prevailed. But the important point is not whether the City had arguments to make but, rather, that it could have made them if it chose. The incorporation ruling was merely an interim pronouncement of a standard of law that left open a determination of the City s liability. There simply was no judgment on 4 the merits. See, e.g., Hanrahan v. Hampton, 446 U.S. 754, (1980) (where appellate order reversed directed verdict for defendant and remanded for new trial, plaintiff had not prevailed since jury could ultimately decide some or all issues in defendant s favor); Richardson v. Penfold, 900 F.2d 116, th 119 (7 Cir. 1990) (request for fees denied where plaintiff succeeded in getting summary judgment against him reversed: plaintiff still had to prove case, and had not obtained any substantive relief). th In Walker v. Calumet City, 565 F.3d 1031 (7 Cir. 2009), the Seventh Circuit explained what constitutes a judgment on the merits for fee purposes. The plaintiff had brought a class action challenging the constitutionality of certain city property code provisions. Id. at While her claim where the judgment is reversed or vacated. 4 Indeed, plaintiffs could not have brought a case simply to determine whether the Second Amendment was incorporated. That issue is not a cause of action with a specific claim of injury that can be redressed by the courts; thus, there would be no Article III case or controversy. See, e.g., Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir.2003). 8

9 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 9 of 16 PageID #:228 was pending, the City inspected her property and, after some repairs were made, declared the property in compliance. Id. The city sought dismissal of the case as moot and the court agreed, but included in its dismissal order the city s representations that it would not enforce the code provisions against plaintiff. Id. The district court awarded plaintiff her fees but the Seventh Circuit reversed, finding that, because the district court had not held the ordinance unconstitutional, it had not issued a judgment on the merits of her claim. Id. at 1036 ( the district court never addressed the merits of Walker s suit. ). Likewise, no court in this case ruled that the City s Ordinance was unconstitutional. See also Federation, 326 F.3d at (denying attorneys fees where city repealed ordinance before any ruling or judgment on its constitutionality); Covenant Media of Ill. v. City of Des Plaines, 2009 WL , *3-4 (N.D. Ill. July 31, 2009) (attached as Exhibit C) (where plaintiff succeeded on preliminary injunction causing defendant to amend ordinance, plaintiff not prevailing party: [t]hat [plaintiff] might benefit from the [amendment], should it in the future actually make and complete an application for a sign, is insufficient to distinguish it from any other non-party potential beneficiary of [plaintiff s] endeavor. ). And while fees were ultimately awarded in Palmetto Properties, Inc. v. County of DuPage, 375 th F.3d 542 (7 Cir. 2004), that case actually illustrates the requirement for a substantive judgment. There, the plaintiffs sued the county claiming that a local ordinance violated the First Amendment by restricting locations for adult-entertainment clubs. Id. at 544. The district court granted partial summary judgment for the plaintiffs, declaring a part of the challenged ordinance unconstitutional. Id. After summary judgment was decided, but before final judgment entered, the county offered to repeal the unconstitutional portions of the ordinance. The court continued the case to allow the county time to repeal the ordinance, and then dismissed the case as moot. Id. at

10 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 10 of 16 PageID #:229 Following dismissal, the district court awarded plaintiff attorneys fees, and the Seventh Circuit affirmed. Even though there was no final judgment, the court explained that it would defy logic to hold that simply because the district court abstained from entering a final order formally closing the case [based on Defendant's representations], Palmetto somehow did not obtain a judicially sanctioned change in the parties legal relationship.... Thus, the court refused to deny plaintiff prevailing party status merely because of a technicality: no final order had been entered. But the court emphasized that the district court had made a substantive determination as to essentially all the constitutional claims save one in its summary judgment order. Id. at Accordingly, unlike here, Palmetto involved substantive rulings in the plaintiffs favor on almost all of its claims, not just an antecedent legal issue in the case. See also Zessar, 536 F.3d at (reversing district court s award of fees to plaintiff who obtained summary judgment granting future injunctive relief; state repealed ordinance before final judgment entered and thus claims were moot and judgment vacated). Whatever success Plaintiffs achieved in the Supreme Court, they did not obtain a judgment on the merits. McDonald determined that the Second Amendment is incorporated against the states an interim legal ruling on a standard of constitutional law that was never actually applied to any of Plaintiffs specific claims. Therefore, Plaintiffs cannot satisfy this requirement under Buckhannon. B. McDonald Did Not Materially Alter The Legal Relationship Between The Parties. Falling short of a judgment on the merits, Plaintiffs are left to show that the McDonald decision is an otherwise sufficient judicial imprimatur on their case to qualify them as prevailing parties. This they also cannot do. Buckhannon recognized that there could be instances other than a judgment on the merits or a consent decree constituting a judicial imprimatur that renders a party as prevailing. But merely 10

11 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 11 of 16 PageID #:230 obtaining a favorable, isolated ruling on a point of law is not enough. Rather, the judicial relief must directly and materially alter the legal relationship of the parties. See, e.g., Buckhannon, 532 U.S. at 604; Farrar, 506 U.S. at 111 (plaintiff prevails only when relief on merits of claim modif[ies] the defendant s th behavior in a way that directly benefits the plaintiff. ); Petersen v. Gibson, 372 F.3d 862, 865 (7 Cir. 2004) (plaintiff must obtain formal judicial relief, not merely success, to be deemed prevailing party), th quoting Crabill v. Trans Union, 259 F.3d 662, 667 (7 Cir. 2001); see also Cady v. City of Chicago, 43 th F.3d 326, 330 (7 Cir. 1994) (unless plaintiff can point to a direct benefit or redressed grievance other than the psychic satisfaction of ending invidious discrimination, cannot be prevailing party). For this reason, legal rulings that do not directly affect the legal relationship of the litigating parties lack the requisite judicial imprimatur to confer prevailing party status. See, e.g., Farrar, 506 U.S. at 112 ( a judicial pronouncement that the defendant has violated the Constitution, unaccompanied by an enforceable judgment on the merits, does not render the plaintiff a prevailing party. ); Hewitt v. Helms, 482 U.S. 755, (1987) (favorable instruction and opinion from Third Circuit regarding unconstitutionality of defendant s conduct insufficient to confer prevailing party status where plaintiff ultimately received no substantive relief); see also Citizens for Better Forestry v. U.S.D.A., 567 F.3d th 1128, 1133 (9 Cir. 2009) ( a favorable determination on a legal issue, even if it might have put the handwriting on the wall, is not enough by itself... ). Peterson illustrates this point well. There, the plaintiff sued her hair salon and a responding police officer for claims arising out of a hair service mishap and refusal to pay for services. Id. at 864. The jury returned a verdict for the plaintiff, finding the officer liable for false arrest but awarding nominal damages only. Id. The court granted the plaintiff s post-trial motion to vacate the nominal damages 11

12 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 12 of 16 PageID #:231 award and, faced with a new trial, the officer settled for $10,000. Id. at 865. The court awarded the plaintiff attorneys fees, but the Seventh Circuit reversed. Id. The Seventh Circuit emphasized that the relief must be real to achieve prevailing party status, and relief is real only when it changes the legal relationship of the parties. Id. at 865. Even though the plaintiff had obtained a favorable jury verdict, the nominal damages award had been vacated and the settlement followed. Thus, the only judgment in this case is a determination that [Plaintiff s] rights were violated... As the Supreme Court noted in Buckhannon, however, attorney s fees are not available where plaintiff has acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by judicial relief. Id.at 866. The court concluded that it was the settlement, not the judgment of the court, that obtained the practical relief sought by [Plaintiff], and therefore the judgment 5 cannot provide the basis for prevailing party status. Id. (emphasis added). See also Neblock Trucking v. Scott, 2010 WL , *5 (N.D. Ill, July 28, 2010) (attached as Exhibit D) (voluntary removal of special condition in permit after plaintiffs claims survived motion to dismiss could not confer prevailing party status because [n]o injunction has been provided, nor have [defendant s] actions been required by a judicially enforceable order or settlement agreement. ). Indeed, at best, McDonald is akin to a declaratory judgment that provided no real relief to Plaintiffs. And a declaratory judgment supports a fee award only if it directly affects the behavior of the defendant toward the plaintiff, such as terminating or requiring some conduct by the defendant. Rhodes 5 For this reason,this Court s decision in C.Z. ex rel. Ziemba v. Plainfield Community, 680 F. Supp.2d 950 (N.D. Ill. 2010), is inapposite. There, the defendant agreed to provide the plaintiffs all of their requested relief, but only after the hearing officer presiding over their due process proceeding intervened and then entered a final order in the plaintiffs favor. Id. at Moreover, in denying the defendant s motion to dismiss plaintiffs petition for attorneys fees, the court also strongly rejected the defendant s position that the due process hearing lacked sufficient judicial imprimatur because it was quasi-judicial only. Id. 12

13 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 13 of 16 PageID #:232 v. Stewart, 488 U.S. 1, 4 (1988) (for declaratory judgment to afford prevailing party status, relief basically must be same as injunction). In Rhodes, two prisoners sued prison officials alleging violations of their constitutional rights because they were refused magazine subscriptions. Id. at 2. The district court held that the defendants had not complied with constitutional standards in denying the request, and ordered them to comply. It then awarded the plaintiffs attorneys fees, and the Sixth Circuit affirmed. Id. The Supreme Court reversed the grant of attorneys fees, finding that, because one of the prisoners had died before the district court s order, and the other one had been released from prison, the plaintiffs had not actually received any real relief. Id. at 4 (declaratory judgment constitutes relief for purposes of 1988 if, and only if, it affects the behavior of the defendant toward the plaintiff. ) (emphasis added). Even though the court had declared the defendant s actions unconstitutional and ordered compliance, the plaintiffs did not obtain relief because a modification of prison policies on magazine subscriptions could not in any way have benefitted either plaintiff. Id. See also King v. Illinois State Bd. Of Elections, 410 th F.3d 404, (7 Cir. 2005) (recognizing rule that declaratory judgments confer prevailing party status only when they directly compel some conduct of defendant towards plaintiff). Here, of course, Plaintiffs did not obtain a formal declaratory judgment. The only favorable order Plaintiffs received was an order reversing the Seventh Circuit s decision on incorporation, and remanding for further proceedings. While the legal issue of incorporation was decided in Plaintiffs favor, that ruling did not alter the legal relationship of the parties. See, e.g., Hewitt, 482 U.S. at (where defendants liability on remand precluded by valid defenses such as immunity, declaratory judgment not basis to award fees). As discussed above, the City could have gone on to defend the Ordinance after McDonald, and may have prevailed on some or all of the claims. Plaintiffs received no court ordered payment of 13

14 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 14 of 16 PageID #:233 damages, specific performance, or termination of conduct from the City in this case. Therefore, they did not obtain the requisite judicial imprimatur, and they should be denied prevailing party status. C. Any Relief Plaintiffs Obtained From Repeal Of The Ordinance Was Voluntary. Finally, to the extent that Plaintiffs contend that McDonald afforded them real relief because it forced the City to repeal the Ordinance, such argument is not supported by, and indeed would contradict, existing case law. First, it is undisputed that no order in this case ever enjoined the enforcement of the Ordinance or directed Defendant to repeal it. Thus, even assuming McDonald impacted the City s decision to repeal the Ordinance, the repeal itself was not directed by any judicial order. Without that (or a preceding 6 judgment on the merits), the repeal can only be seen as voluntary. See, e.g., Farrar, 506 U.S. at 111 ( whatever relief the [party] secures must directly benefit him at the time of the judgment or settlement. ) (emphasis added); Peterson, 372 F.3d at 865 (where plaintiff received jury verdict, but damages paid were result of post-verdict settlement, relief did not satisfy test for prevailing party). Thus, the judgment or order itself must command the change in conduct, not merely motivate or lead to it. Second, this argument would undermine the rationale of Buckhannon. In rejecting the catalyst theory, Buckhannon essentially rejected an inquiry into the defendant s motivations for its change of conduct. Indeed, the Court re-emphasized its prior holdings that [a] request for attorney s fees should 6 In Palmetto Properties, the Seventh Circuit noted that the county repealed its ordinance only after the determination of liability had been made and presumably because of it F.3d at 550 (emphasis in original). There, however, the court had actually ruled on the plaintiffs underlying claims in its favor, where here, there was no such ruling. See also Southworth v. Board of Regents of Univ. of th Wisconsin, 376 F.3d 757, 768 (7 Cir. 2004) (plaintiffs first received judgment that defendant s mandatory fee policy violated First Amendment, which then led to change in policy). Likewise, in Federation, the court assumed arguendo that the city repealed the ordinance because of the Supreme Court decision in another case, but did not actually hold that the city s actions were involuntary. Moreover, there, the court denied plaintiffs request for fees. 326 F.3d at

15 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 15 of 16 PageID #:234 not result in a second major litigation. Buckhannon, 532 U.S. at 609, quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Analyzing the defendant s subjective motivations for changing its conduct would likely depend on a highly factbound inquiry and may turn on reasonable inferences from the nature and timing of the defendant s change in conduct. Id. at 610 (internal citations omitted). The Court recognized that such inquiries would not lend themselves to ready administrability, as fee awards should. Id. Accordingly, even where a judicial ruling sets certain voluntary acts of the defendant in motion, those voluntary acts cannot be bootstrapped into a determination that the plaintiff prevailed. To hold otherwise would constitute an impermissible drift towards the catalyst theory that was clearly rejected in Buckhannon. Neblock Trucking, 2010 WL at * 5. CONCLUSION For the reasons stated herein, Defendant the City of Chicago respectfully requests that the Court find that Plaintiffs are not prevailing parties entitled to attorneys fees under 42 U.S.C. 1988, deny Plaintiffs request for any such award of fees, and grant Defendant any other relief the Court deems just. Respectfully submitted, MARA S. GEORGES Corporation Counsel of the City of Chicago Michael A. Forti Mardell Nereim Rebecca Alfert Hirsch William Macy Aguiar Andrew W. Worseck City of Chicago Department of Law 30 North LaSalle Street, Suite 1230 Chicago, IL (312) By: /s/ Rebecca Alfert Hirsch Assistant Corporation Counsel for the City of Chicago 15

16 Case: 1:08-cv Document #: 70 Filed: 12/15/10 Page 16 of 16 PageID #:235 CERTIFICATE OF SERVICE The undersigned, an attorney of record for the Defendants, hereby certifies that on December 15, 2010, she served copies of the foregoing Defendant s Memorandum of Law Contesting Plaintiffs Status As Prevailing Parties Entitled To Attorneys Fees via electronic means to the counsel of record listed below: Stephen P. Halbrook Main Street, Suite 404 Fairfax, VA protell@aol.com Stephen A. Kolodziej Brenner, Ford, Monroe & Scott Ltd. 33 North Dearborn, Suite 300 Chicago, IL skolodziej@brennerlawfirm.com /s/ Rebecca Alfert Hirsch 16

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